Velos Media, LLC

Patent Trials and Appeals Board

May 12, 2020

IPR2019-00194 (P.T.A.B. May. 12, 2020)

Trials@uspto.gov Paper No. 58
571-272-7822 Entered: May 12, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

UNIFIED PATENTS INC.,
Petitioner,

v.

VELOS MEDIA, LLC,
Patent Owner.
____________

IPR2019-00194
Patent 9,338,449 B2
____________

Before J. JOHN LEE, JASON W. MELVIN, and AARON W. MOORE,
Administrative Patent Judges.

MELVIN, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining No Challenged Claims Unpatentable
35 U.S.C. § 318(a)

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I. INTRODUCTION
Petitioner, Unified Patents, Inc., filed a Petition (Paper 1, “Pet.”)
requesting inter partes review of claims 1–3, 5, 13–15, and 17 (“the
challenged claims”) of U.S. Patent No. 9,338,449 B2 (Ex. 1001, “the ’449
patent”). Patent Owner, Velos Media, LLC, filed a Preliminary Response.
Paper 7 (“Prelim. Resp.”). We instituted review of the challenged claims.
Paper 8 (“Institution Decision” or “Inst.”).
Patent Owner filed a Response. Paper 27 (“PO Resp.”). Petitioner
filed a Reply. Paper 37 (“Pet. Reply”). Patent Owner filed a Sur-Reply.
Paper 47 (“PO Sur-Reply”). Petitioner filed a Sur-Sur-Reply. Paper 48 (“Pet.
Sur-Sur-Reply”). We held a hearing on February 13, 2020, and a transcript
appears in the record. Paper 54 (nonconfidential portion) (“Tr.”); Paper 56
(confidential portion).
This is a final written decision as to the patentability of the challenged
claims. For the reasons discussed below, we determine that Petitioner has
not shown by a preponderance of the evidence that any of the challenged
claims is unpatentable.
A. THE ’449 PATENT
The ’449 patent is titled “Harmonized Scan Order for Coding
Transform Coefficients in Video Coding” and describes techniques related
to processing video-compression data. Ex. 1001, code (54), 1:16–2:17. The
patent describes that video compression involves processing blocks of image
data with spatial or temporal prediction to generate blocks of residual data
that represent pixel-level differences between the original block and the
predictive block. Id. at 1:35–55. Further processing transforms the data into
a transform domain and quantizes the data, thus producing blocks of
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quantized residual transform coefficients. Id. at 1:55–58. The two-
dimensional blocks of transform coefficients may be scanned to produce a
one-dimensional vector of transform coefficients suitable for entropy coding.
Id. at 1:58–62. The patent explains that, “[t]o entropy code a block of
quantized transform coefficients, a scanning process is usually performed so
that the two-dimensional (2D) array of quantized transform coefficients in a
block is processed, according to a particular scan order, in an ordered, one-
dimensional (1D) array, i.e., vector, of transform coefficients.” Id. at 5:51–
56.
The ’449 patent states that “scan order may be important for efficient
entropy coding.” Id. at 6:5–6. It purports to improve the scanning process by
selecting the order for scanning a block of transform coefficients during each
of multiple passes. Id. at 2:12–51. In the video-compression standards
discussed, the transform coefficients are first scanned to determine the
location of significant (nonzero) coefficients, creating a significance map
identifying such locations. Id. at 7:28–8:31. Then, the level of each
significant coefficient is scanned and coded. Id. at 8:31–34. The ’449 patent
states that conventional coding processes disadvantageously used different
scan orders for coding the significance map and coding the coefficient
levels. Id. at 10:11–44. The ’449 patent proposes approaches that address the
drawbacks with conventional coding processes. Id. at 10:65–11:1. One
proposed approach is scanning the transform coefficients in the same order
for significance coding and level coding. Id. at 13:47–55, 16:36–56. The
challenged claims reflect that approach, as set forth below.
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B. ILLUSTRATIVE CLAIMS
Challenged claims 1 and 13 are independent. Claim 1 is illustrative
and is reproduced below:
1. A method of coding a plurality of transform coefficients
associated with residual video data in a video coding
process, the method comprising:
coding information indicating significant coefficients for
the plurality of transform coefficients according to a
scan order in a first scan pass, wherein the scan order
includes a scan pattern and a scan direction; and
coding information indicating levels of significant
coefficients of the plurality of transform coefficients
according to the scan order used for coding the
information indicating significant coefficients in a
second scan pass.
Id. at 39:45–55. Claim 13 recites parallel limitations, as instructions on a
non-transitory computer-readable storage medium that cause a processor to
perform the claimed method. Id. at 40:36–48.
C. PRIOR ART AND ASSERTED GROUNDS
Petitioner asserts that the challenged claims would have been
unpatentable on the following grounds:
Claims Challenged 35 U.S.C. § Reference(s)/Basis
1–3, 5, 13–15, 17 103 Cheon1, Perera2
1–3, 5, 13–15, 17 103 Perera

1 U.S. Publication No. 2011/0096834 A1 (filed Oct. 28, 2010; published
Apr. 28, 2011) (Ex. 1003).
2 U.S. Publication No. 2008/0043833 A1 (published Feb. 21, 2008)
(Ex. 1004).
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Claims Challenged 35 U.S.C. § Reference(s)/Basis
1–3, 5, 13–15, 17 103 Cheon, Mallat3
Pet. 4. Petitioner also relies on the Declaration of Lina J. Karam, Ph.D.
(Ex. 1002). See generally Pet. 4–79.
II. ANALYSIS
A. LEVEL OF ORDINARY SKILL IN THE ART
Petitioner asserts a person of ordinary skill in the art at the time of the
application resulting in the ’449 patent “would have had at least the
equivalent of a Bachelor’s degree in electrical engineering, computer
engineering, or a related subject and two or more years of experience in the
field of video coding.” Pet. 23–24. Patent Owner does not contest that
definition of a skilled artisan or offer a different one. Petitioner’s definition
is consistent with the descriptions in the ’449 patent and the asserted art, and
we adopt it.
B. CLAIM CONSTRUCTION
In a Board proceeding based on a petition filed before November 13,
2018, as here, claims in an unexpired patent are interpreted according to
their broadest-reasonable construction in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b) (2018); Cuozzo Speed
Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016).4 Under that standard,

3 Stéphane Mallat, Analysis of Low Bit Rate Image Transform Coding, IEEE
Transactions on Signal Processing, Vol. 46, No. 4, April 1998, at 1027
(Ex. 1020).
4 A recent amendment to this rule does not apply here because the Petition
was filed before November 13, 2018. See Changes to the Claim
Construction Standard for Interpreting Claims in Trial Proceedings Before
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we generally give a claim term its “ordinary and customary meaning,” which
is “the meaning that the term would have to a person of ordinary skill in the
art in question” at the time of the invention. In re Translogic Tech., Inc.,
504 F.3d 1249, 1257 (Fed. Cir. 2007). The specification may impose a
specialized meaning, departing from the ordinary and customary meaning,
by defining a term with reasonable clarity, deliberateness, and precision. In
re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
Although Petitioner proposes a construction for “information
indicating levels of significant coefficients” (Pet. 27), we determined in the
Institution Decision that there was no need to construe the phrase. Inst. 5.
Absent any indication from the parties why such a construction would
impact our analysis, we reach that same conclusion here. See Nidec Motor
Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017
(Fed. Cir. 2017); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
803 (Fed. Cir. 1999).
In the Institution Decision, we noted that applying the asserted
grounds requires an understanding of whether the claimed “first scan pass”
and “second scan pass” require scanning transform coefficients or instead
encompass scanning an intermediate data set, itself created from the
transform coefficients. Inst. 5. Based on our analysis of the record at that
time, we construed the claims as limited to scanning the transform
coefficients themselves and invited the parties to address the issue during
trial. Id.

the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018)
(amending 37 C.F.R. § 42.100(b), effective Nov. 13, 2018) (codified at
37 C.F.R. § 42.100(b) (2019)).
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Patent Owner submits that “the claims require scanning the transform
coefficients in each scan pass.” PO Resp. 10. Patent Owner relies first on the
claim language, which is directed to “coding ‘a plurality of transform
coefficients’” by performing two scan passes. PO Sur-Reply 5–6. It also
points out that the specification discloses that “scanning of the transform
coefficients may involve two scans”—one “to form the significance map”
and another that “codes the levels of the transform coefficients.” Ex. 1001,
16:36–44; PO Sur-Reply 6. Patent Owner further identifies that the
specification discusses “scan orders for a block of transform coefficients.”
PO Sur-Reply 6 (citing Ex. 1001, 16:57–59).
Petitioner argues that the specification allows for scanning different
information in the two scan passes, including an intermediate data set
created from the transform coefficients. Pet. Reply 2–3. It submits that once
a significance map has been created from the transform coefficients,
scanning that map itself would generate the claimed significance
information, while scanning the transform coefficients would generate the
claimed level information. Id. at 3. Thus, according to Petitioner, a
“significance map scan” refers to scanning the significance map, not
scanning the transform coefficients to generate the significance map. Stated
otherwise, Petitioner reads the claimed coding process as producing an
output stream of information, not as producing significance and level maps.
See Tr. 25:22–26:20 (The claim “talks about the scans that are required for
coding information, not for generating the significance map. It’s coding the
information to be sent to the decoder.”).
The claim language is of primary importance. The claims recite
“coding information indicating significant coefficients . . . according to a
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scan order in a first scan pass,” allowing one possible understanding that the
“first scan pass” frames the relevant “scan order.” Alternatively, the “first
scan pass” frames the step of “coding information” (which would be
performed “in a first scan pass”).
The claim’s subsequent limitation resolves the ambiguity regarding
the phrase “in a first scan pass” and shows the proper grammatical
relationship. That limitation recites “coding information indicating levels . . .
according to the scan order used for coding the information indicating
significant coefficients in a second scan pass.” The phrase “in a second scan
pass” serves not to frame the scan order—the scan order for coding level
information must be the same as the scan order for coding significance
information. Rather, “in a second scan pass” relates to the phrase “coding
information”—no other understanding of “in a second scan pass” would
make sense. For internal consistency, that same understanding must apply to
the first limitation such that “in a first scan pass” frames the step of “coding
information.” Thus, the claim language requires coding significance
information in a first scan pass, and then coding level information in a
second scan pass, where each scan pass uses the same scan order.
With the understanding just discussed, it does not make sense to view
the claims as applying to methods that scan data other than the transform
coefficients. We reach that conclusion first because the claims recite “coding
information . . . for the plurality of transform coefficients” and, thus, directly
involve the transform coefficients. Second, as discussed, the acts of coding
information must be performed in a first and second scan pass (using the
same scan order for each). Because coding involves the transform
coefficients and must be performed in the claimed scan passes, those two
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aspects of the claim language require scanning the transform coefficients
themselves.
Petitioner argues that construing the claim language as Patent Owner
seeks would exclude a disclosed embodiment because the specification’s
statement that “a first scan is the significance map scan” indicates a scan of
the significance map. Pet. Reply 5–6 (quoting Ex. 1001, 2:30–44).
Therefore, according to Petitioner, the claimed first scan pass must include
scanning data other than the transform coefficients. Id.
When discussing the scans in more detail, the specification states that
“the significance map is encoded by following a scan order of transform
coefficients in the block” and describes that the block of transform
coefficients “are first mapped into a one-dimensional list using a given
scanning pattern.” Ex. 1001, 7:58–65. It then states that, “[g]iven the
scanning pattern, the significance map is scanned” using a procedure where,
“[f]or each transform coefficient in the scanning order, a one-bit symbol
significant_coeff_flag is transmitted.” Id. at 8:5–7. Although that language
states that “the significance map is scanned,” the overall discussion shows
that a “significance map scan” refers to scanning the transform coefficients
to generate the significance map. That understanding is consistent with a
statement in the Background that “[t]he quantized transform coefficients,
initially arranged in a two-dimensional array, may be scanned in a particular
order to produce a one-dimensional vector of transform coefficients for
entropy coding.” Id. at 1:58–62. The specification repeatedly describes
scanning as a process applied to the transform coefficients, for example to
obtain a one-dimensional array from a two-dimensional block of
coefficients. See, e.g., id. at 5:51–59, 7:61–65, Figs. 2, 3, 6. It is consistent
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with the specification to interpret a “coding” process as one that operates on
transform coefficients to produce a significance map or level information.
See id. at 7:36–38 (“As shown in FIG. 1, significance map coding of the
quantized transform coefficients 11 produces a significance map 13.”).
Based on the foregoing discussion, we conclude that the claimed scan
passes require scanning the plurality of transform coefficients, not an
intermediate data set.
C. UNPATENTABILITY BASED ON CHEON
Petitioner relies on Cheon as disclosing most of claim 1’s limitations
in the ground asserting Cheon and Perera, and in the ground asserting Cheon
and Mallat. Pet. 39–62, 70–71.
Cheon discloses image-compression techniques for encoding and
decoding blocks of residual data. Ex. 1003 ¶¶ 3, 5, 210–216. Cheon’s coding
process involves scanning blocks of residual data to produce a significance
map. Id. ¶¶ 174–175, Figs. 14A–C. Cheon states that “[l]evel information of
an effective coefficient, i.e., a sign and an absolute value of the effective
coefficient, is encoded after the significance map is encoded.” Id. ¶ 175.
Petitioner asserts that Cheon discloses both claimed scan passes of the
transform coefficients—one to generate significance information and one to
generate level information. Pet. 41 (“Cheon further discloses generating,
from transformation residual block 1420, a significance map 1430 shown in
Figure 14C.”), 45 (“Cheon discloses that significance map 1430 is ‘encoded
according to a raster scanning order, and scanning is performed from left to
right and top to bottom.’” (quoting Ex. 1003 ¶ 175)), 61 (“[A] POSA would
have understood that, after the significance map is encoded in a first scan
pass, Cheon’s transformation residual block would be scanned in a second
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pass to encode the information indicating or representative of sign and the
absolute value of every effective coefficient” (citing Ex. 1002 ¶ 127)).
Indeed, when Patent Owner challenged whether Mallat discloses a second
scan pass, Petitioner confirmed that it “relies on Cheon for multiple scan
passes.” Pet. Reply 13 (citing Pet. 71).
We find Cheon’s disclosure regarding a purported second scan is
insufficient to carry Petitioner’s burden. The primary disclosure Petitioner
relies on states only that “[l]evel information of an effective coefficient . . .
is encoded after the significance map is encoded.” Ex. 1003 ¶ 175. That does
not expressly state that a second scan is performed to encode the level
information. Petitioner is left relying on a statement by its declarant that a
person of skill would have understood to perform a second scan pass when
encoding the level information. Pet. 61. But Petitioner’s declarant provides
no explanation and instead simply makes the conclusion. Ex. 1002 ¶ 127.
We do not afford significant weight to such a conclusory statement. See
37 C.F.R. § 42.65(a) (“Expert testimony that does not disclose the
underlying facts or data on which the opinion is based is entitled to little or
no weight.”). We are left with the possibility that Cheon’s paragraph 175
discloses a second scan, but that does not persuade us that Cheon makes an
adequate disclosure to teach a second scan. In this regard, we credit the
testimony of Patent Owner’s declarant that skilled artisans would have
understood Cheon’s paragraph 175 to teach a single scan pass. Ex. 2034
¶¶ 158–159.
In the Reply, Petitioner identifies Cheon’s paragraph 198 as
supporting that Cheon discloses two scan passes. Pet. Reply 10–11. That
paragraph describes operation of the “effective coefficient encoder 1530” in
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connection with Figure 17A. Ex. 1003 ¶ 198. The encoder “may encode a
significance map indicating locations of effective transformation coefficients
. . . , and size and sign information of each effective transformation
coefficient, while scanning the entire transformation residual block.” Id.
According to Petitioner, the “scan to capture integers is a second scan pass,
different from the significance map scan capturing binary data.”
Pet. Reply 11.5
Patent Owner contends that Cheon’s paragraph 198 instead shows a
process of performing a single scan to encode both significance and level
information. PO Sur-Reply 14–15. In support of that conclusion, Patent
Owner relies on Cheon’s statement that both types of information may be
encoded “while scanning.” Id.
Paragraph 198 further states that “scanning may be skipped in a
frequency band unit in which an effective coefficient flag has a value of 0,
i.e., a frequency band unit that does not have an effective transformation
coefficient.” Id. Petitioner argues that knowing a scan may be skipped
requires an initial scan for significance information. Tr. 61:17–62:9. We
agree with Patent Owner that this is a new argument that was raised for the
first time at the oral hearing. Tr. 66:7–9. Even considering it, however, the
argument is not persuasive on its merits.
Petitioner’s argument glosses over Cheon’s disclosure that scanning
may be skipped for units “in which an effective coefficient flag has a value
of 0.” Ex. 1003 ¶ 198 (emphasis added). Cheon explains that flag in
paragraph 194, stating that “the effective coefficient flag generator 1520

5 Petitioner uses “integers” to refer to the claimed level information.
Reply 10.
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generates an effective coefficient flag indicating whether an effective
transformation coefficient exists in each frequency band unit” when splitting
a residual block into frequency band units. Id. ¶ 194. Consistently, as Patent
Owner points out, Cheon’s figure 15 shows that generating flags is a
separate operation from encoding the effective coefficients. Tr. 66:11–20;
Ex. 1003, Fig. 15. Thus, we do not agree with Petitioner that knowing
whether scanning may be skipped for a frequency band unit teaches
scanning that unit to code significance information, as claimed.
Petitioner further relies on Cheon’s paragraph 215 as disclosing two
transform-coefficient scans. Pet. 52; Tr. 61:5–7. There, Cheon describes a
step of Figure 20, which shows one “method of encoding a residual block.”
See Ex. 1003 ¶¶ 30, 215, Fig. 20. According to paragraph 215, “the effective
coefficient encoder 1530 encodes a significance map indicating locations of
the effective transformation coefficients and level information of the
effective transformation coefficients . . . while scanning the transformation
residual block.” Id. ¶ 215. Thus, paragraph 215 describes the same encoder
as does paragraph 198. The described operation matches that in
paragraph 198, discussed above. For the same reasons discussed above
regarding paragraph 198, we find that Cheon’s paragraph 215 does not teach
two separate scans for encoding significance and level information of the
transformation coefficients.
Accordingly, Cheon does not teach two scan passes that encode
transform-coefficient significance and level information, respectively.
Petitioner relies on Cheon alone to satisfy the claims’ requirement for two
scan passes (see Pet. Reply 13), and we, therefore, conclude that, for the two
grounds including Cheon, Petitioner has not shown unpatentability by a
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preponderance of the evidence. Petitioner’s assertions for claim 13 rely on
its assertions for claim 1, and, therefore, suffer from the same deficiencies.
Pet. 65–66. Petitioner’s assertions for the dependent claims do not remedy
those deficiencies. Id. at 62–63, 66–67. Accordingly, we conclude that
Petitioner has not proven unpatentability based on Cheon and Perera or
based on Cheon and Mallat.
D. UNPATENTABILITY BASED ON PERERA
In the first ground, Petitioner asserts that Cheon teaches most
limitations of claim 1 and that Perera teaches performing a scan “according
to the scan order used for coding the information indicating significant
coefficients.” Pet. 39–62. In the second ground, Petitioner asserts that Perera
teaches all limitations. Pet. 67. We conclude that Petitioner has not
adequately supported either ground because Perera does not disclose certain
aspects of the claims.
1. Perera does not disclose coding significance information
by scanning the transform coefficients
Perera relates to transferring data representing video images. Ex. 1004
¶¶ 1, 2. Like the ’449 patent, Perera’s method involves separating the data
into blocks of information and transforming those image-data blocks into
transform-coefficient blocks. Id. at ¶¶ 4–6. For transmission, Perera
discloses methods of encoding the transform blocks. Id. ¶¶ 7–8. Perera
discloses that “each block [of coefficients] is scanned in a certain order to
generate a series of data (a first data series 52).” Ex. 1004 ¶ 42. It also
discloses that “the significance map 54 . . . indicates the location of non-zero
values in the data series 52.” Id.
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In the ground asserting Perera alone, Petitioner relies on its assertions
regarding the combination of Cheon and Perera. Pet. 67. Those include that
Perera teaches “coding information indicating significant coefficients for the
plurality of transform coefficients according to a scan order in a first scan
pass” as claimed. Pet. 43–45, 46–47. Notably, Petitioner relies on Perera’s
disclosure of scanning transform coefficients to generate “data series 52”
and then generating a significance map from that data series. Id. at 46–47
(citing Ex. 1004 ¶¶ 41, 42). In other words, Petitioner does not dispute that
Perera teaches determining the significant coefficients by scanning an
intermediate data set rather than by scanning the transform coefficients. See
PO Sur-Reply 2–3.
As discussed above, we construe the challenged claims to require
scanning the transform coefficients themselves, not an intermediate data set.
See supra at 5–10. Perera teaches a different process, in which residual data
is first scanned to produce a one-dimensional array and then that array is
used to code information indicating the significant coefficients and the levels
of those coefficients.
Thus, we do not agree with Petitioner that Perera teaches the claimed
first scan pass. Accordingly, Petitioner has failed to prove claim 1’s
unpatentability over Perera alone. Petitioner’s assertions for claim 13 rely on
its assertions for claim 1, and, therefore, suffer from the same deficiencies.
Pet. 67. Petitioner’s assertions for the dependent claims do not remedy those
deficiencies. Id. Accordingly, we conclude that Petitioner has not proven
unpatentability based on Perera alone.
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2. Perera does not disclose a scan order that would apply to Cheon
When Petitioner asserts a combination of teachings from Cheon and
Perera, it relies on Perera as teaching that the scan order of the second scan
pass proceeds “according to the scan order used for coding the information
indicating significant coefficients.” See Pet. 52–54. Petitioner relies on the
values of Perera’s data series 52 being in the same order as the transform
coefficients were scanned. See Pet. 53 (asserting that Perera “codes the
levels of series 52 to form coefficients 58 in series 60 in the same scan order
as the coding of block 50 to form series 52”), 54 (arguing that, to generate
the values of significant coefficients, “series 52 (including significant
coefficients) would have been scanned” in the same pattern as encoding of
Perera’s significance map 54).
Because Perera discloses scanning a one-dimensional intermediate
data set (data series 52), the order for that scan is not the same as the order
for scanning a two-dimensional block of transform coefficients. The claim
requires a “scan order [that] includes a scan pattern and a scan direction.”
But Perera’s scan of a one-dimensional list does not provide a pattern that
may be applied to Cheon’s two-dimensional array.
Thus, we do not agree with Petitioner that Perera teaches the claimed
“according to the scan order used for coding the information indicating
significant coefficients.” Accordingly, Petitioner has failed to prove
claim 1’s unpatentability over a combination of Cheon and Perera for this
additional reason.6 Petitioner’s assertions for claim 13 rely on its assertions
for claim 1, and, therefore, suffer from the same deficiencies. Pet. 64–66.

6 As explained above, Petitioner also failed to meet its burden on this
asserted ground due to deficiencies relating to Cheon’s teachings.
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Petitioner’s assertions for the dependent claims do not remedy those
deficiencies. Pet. 62–64, 66–67. Accordingly, for that additional reason, we
conclude that Petitioner has not proven unpatentability based on a
combination of Cheon and Perera.
E. REAL PARTIES IN INTEREST
Patent Owner argues that we should dismiss the Petition because it
does not name all real parties in interest. PO Resp. 65–69. Patent Owner
identifies seven companies that have paid membership fees to Petitioner and
asserts that those companies should have been named as real parties in
interest. Id.
Petitioner challenges Patent Owner’s assertions, arguing that Unified
Patents Inc. is the sole real party in interest. Pet. Reply 22–30. Petitioner
cites evidence that it alone controls this proceeding (Ex. 2018, 11; Ex. 1045,
31:25–33:2) and does not communicate with its members about potential
validity challenges before filing IPRs (Ex. 1045, 222:14–223:4). Petitioner
searched for and could not identify any communications with its members
regarding the ’449 patent or this proceeding other than public
announcements. Pet. Reply 25; Ex. 2027, 68:22–69:9; Ex. 2019. Petitioner
further points out that no alleged unnamed real party in interest would be
subject to a time bar under § 315(b). Pet. Reply 25.
We have considered the parties submissions and determine that
Petitioner has adequately identified the real party in interest. Patent Owner
has introduced no evidence specific to this proceeding that causes us to
question Petitioner’s identification, and has not identified an aspect of
Petitioner’s business structure that we view as showing the alleged unnamed
real parties in interest are clear beneficiaries with respect to this proceeding
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that have a preexisting, established relationship with Petitioner. See Ventex
Co. v. Columbia Sportswear N. Am., Inc., IPR2017-00651, Paper 152, 6–11
(Jan. 24, 2019) (precedential).
F. THE BOARD’S CONSTITUTIONALITY
Patent Owner asserts that the “Board lacks the authority to issue a
Final Written Decision in this proceeding because the Administrative Patent
Judges (‘APJs’) are principal officers of the United States that must be
appointed by the President and confirmed by the Senate.” PO Sur-Reply 25.
According to Patent Owner, the Federal Circuit’s decision in Arthrex, Inc. v.
Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), “did not actually fix
the problem.” PO Sur-Reply 25.
We, however, follow the Federal Circuit’s decision, which addressed
this issue. See Arthrex, 941 F.3d at 1337 (“This as-applied severance . . .
cures the constitutional violation.”). Accordingly, Patent Owner’s argument
is not persuasive.

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III. CONCLUSION
For the reasons discussed above, we conclude Petitioner has not
proven unpatentability of the challenged claims.
In summary:
Claims

35
U.S.C.
§
Reference(s)/Basis
Claims
Shown
Unpatentable
Claims
Not Shown
Unpatentable
1–3, 5,
13–15, 17 103 Cheon, Perera
1–3, 5, 13–15,
17
1–3, 5,
13–15, 17 103 Perera
1–3, 5, 13–15,
17
1–3, 5,
13–15, 17 103 Cheon, Mallat
1–3, 5, 13–15,
17
Overall
Outcome
1–3, 5, 13–15,
17
IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that claims 1–3, 5, 13–15, and 17 of US 9,338,449 B2 are
not determined to be unpatentable; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER:
David L. Cavanaugh
Trishan Esram
Brian J. Lambson
Jonathan P. Knight
WILMER CUTLER PICKERING HALE AND DORR LLP
david.cavanaugh@wilmerhale.com
trishan.esram@wilmerhale.com
brian.lambson@wilmerhale.com
jonathan.knight@wilmerhale.com

Ashraf Fawzy
Jonathan Stroud
UNIFIED PATENTS INC.
afawzy@unifiedpatents.com
jonathan@unifiedpatents.com

PATENT OWNER:
Brent N. Bumgardner
Barry J. Bumgardner
Matthew C. Juren
Thomas C. Cecil
Brian P. Herrmann
NELSON BUMGARDNER ALBRITTON P.C.
brent@nbafirm.com
barry@nbafirm.com
matthew@nbafirm.com
tom@nbafirm.com
brian@nbafirm.com